Japanese courts continue to reject arbitrators of foreign nationalities, although there is no official nationality requirement for the job and demand has soared for their services.

Such shunning has put many non-Japanese people at a disadvantage in legal matters concerning divorce, child custody, inheritance and other daily affairs.

Bar associations and other relevant organizations choose arbitrator candidates from among lawyers and experts in legal matters and other subjects.

Courts then send the nominations to the Supreme Court, which screens the candidates and possibly anoints them.

But with rejections of foreign arbitrators rife, some of those chosen may be unfamiliar with the problems facing foreign residents and may not even speak their language.

The nongovernmental group Network for Foreigners’ Assistance Kobe has been flooded with inquiries from non-Japanese people about legal matters.

One domestic violence victim wanted to get a divorce but was worried that the separation could affect visa status.

Another asked about child custody following a divorce.

Many of the information seekers are from the Philippines, China and Brazil and are married to Japanese citizens.

The organization held phone consultations with 500 individuals last fiscal year, and its officials accompanied people on 400 occasions to help them resolve their legal difficulties.

“My impression is that more than half of them were dealing with issues concerning divorces,” said Yuki Muranishi, 35, a member of the group’s secretariat.

According to the 2020 national census, 650,000 couples in international marriages were living in Japan, or 2 percent of the total. Two decades earlier, the number was 410,000.
Around 10,000 international couples got divorced in 2020, statistics from the Ministry of Health, Labor and Welfare show.

LEGAL COMPLICATIONS FOR FOREIGNERS

Yuji Kimura, 72, a counselor at the Network for Foreigners’ Assistance Kobe, said arbitration should be sought when there is at least one disagreement in the divorce process.

Judges and arbitrators work together to resolve cases in which the two sides cannot reach agreement regarding divorce, child custody, child support, inheritance, unpaid rent and other issues.

The mediation system is also used when one spouse refuses to accept a divorce. Some spouses seek arbitration without telling their partners.

But even foreign spouses who can easily converse in Japanese often face difficulties understanding legal specifics.

“Language disadvantages make it impossible to have fair discussions,” Kimura said. “All decisions should be recorded in documents.”

Muranishi of the group once attended a divorce mediation meeting as an English interpreter for a Filipino woman.

“The arbitrator there listened only to the story of the Japanese husband,” Muranishi said, adding that the wife struggled to speak in her poor Japanese, and her opinions were not taken seriously.

Kimura participated in an arbitration session as a Thai interpreter but was told to leave the meeting room for “privacy reasons.”

“I was stunned by the fact that arbitrators lack an understanding” of the troubles facing foreigners, Kimura said. “I would like knowledgeable people to serve as arbitrators regardless of their nationality.”

REJECTIONS NATIONWIDE

Last December, the Hyogo Bar Association on its website called for arbitrators to be “appointed without regard to nationality.”

The bar association recommended two South Korean lawyers as arbitrators last autumn. But the Kobe District Court and the Kobe Family Court refused to nominate them for the Supreme Court’s screening.

The reasoning was that they did “not have Japanese nationality.”

Masaaki Yoshii, 77, an attorney who chairs a project team working within the Japan Federation of Bar Associations to incorporate arbitrators of foreign nationalities, said the Hyogo Bar Association recommended a non-Japanese lawyer way back in 2003.

The Kobe Family Court rejected the nomination, as well as all non-Japanese lawyers who have been recommended since then.

The situation is the same nationwide. Records show that all foreign lawyers recommended as arbitrators by bar associations in Tokyo and Osaka Prefecture since around 2006 have been rejected.

According to Yoshii, bar associations in Hyogo Prefecture, Osaka Prefecture, Tokushima Prefecture and Sapporo released statements last year, protesting courts’ refusals to accept arbitrators of foreign nationalities.

The Japan Federation of Bar Associations has published similar statements multiple times.

NO CLEAR LEGAL BASIS

The Civil Mediation Law and other related rules include no provisions about nationality requirements for arbitrators.

So how can courts turn away non-Japanese arbitrators?

In response to an inquiry from the Japan Federation of Bar Associations, the Supreme Court stated in 2008 that arbitrators are considered “public servants involved in exercising administrative authority or in the formation of the national will.”

A Kobe District Court official told The Asahi Shimbun that “descriptions in records about mediation processes are as effective as final judgments, and the arbitrators’ committee also has the authority to investigate facts.

“This constitutes the exercise of administrative authority or the formation of the national will.”

Yoshii said people with qualifications and abilities should be accepted irrespective of nationality.

“Their (arbitrators’) duty of facilitating discussions to reach settlements can never be called as contributing to the formation of the national will,” he said. “Rejecting them with no legal basis is unacceptable in a law-abiding nation.”

Baek Seung-ho, a 62-year-old South Korean lawyer who is a former chair of the Hyogo Bar Association, said he has been rejected more than 10 times.

“I want to know why my serving as an arbitrator will create problems,” Baek said. “Courts remain unchanged while Japanese society is now heading toward respecting human rights and eliminating discrimination over gender and other issues.”